Citation Nr: 0314429
Decision Date: 07/01/03 Archive Date: 07/10/03
DOCKET NO. 99-25 206 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUES
1. Evaluation of the veteran's right knee patellar
tendonitis, currently evaluated as 10 percent disabling.
2. Evaluation of the veteran's left knee patellar
tendonitis, currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
J. T. Hutcheson, Counsel
INTRODUCTION
The veteran had active service from October 1978 to October
1998. This matter came before the Board of Veterans' Appeals
(Board) on appeal from a June 1999 rating decision of the
Montgomery, Alabama, Regional Office (RO) which, in pertinent
part, established service connection for bilateral knee
patellar tendonitis and assigned a noncompensable evaluation
for that disability. In February 2001, the Board remanded
the veteran's appeal to the RO for additional action.
In February 2002, the RO, in pertinent part, recharacterized
the veteran's service-connected bilateral knee disability as
right knee patellar tendonitis evaluated as 10 percent
disabling and left knee patellar tendonitis evaluated as 10
percent disabling. The veteran has been represented
throughout this appeal by the American Legion.
The Board observes that the veteran has appealed from the
evaluations assigned for his service-connected right and left
knee disabilities. In Fenderson v. West, 12 Vet. App. 119
(1999), the United States Court of Appeals for Veterans
Claims (Court) addressed a similar appeal and directed that
it was specifically not a claim for an increased disability
evaluation. However, the Court did not provide a specific
name for the issue in lieu of "increased disability
evaluation." In the absence of such direction, the Board
has framed the issues as evaluation of the veteran's right
knee patellar tendonitis and left knee patellar tendonitis.
The veteran is not prejudiced by such action. The Board has
not dismissed any issue and the law and regulations governing
the evaluation of disabilities is the same regardless of how
the issue is styled.
Preliminary review of the record does not reveal that the RO
expressly considered referral of the evaluations of the
veteran's right and left knee disabilities to the Department
of Veterans Affairs (VA) Undersecretary for Benefits or the
Director, VA Compensation and Pension Service for the
assignment of an extraschedular rating under 38 C.F.R.
§ 3.321(b)(1) (2002). That regulation provides that to
accord justice in an exceptional case where the schedular
standards are found to be inadequate, the field station is
authorized to refer the case to the Undersecretary for
Benefits or the Director, VA Compensation and Pension Service
for assignment of an extraschedular evaluation commensurate
with the average earning capacity impairment. The governing
criteria for such an award is a finding that the case
presents such an exceptional or unusual disability picture
with such related factors as marked interference with
employment or frequent periods of hospitalization as to
render impractical the application of the regular schedular
standards. The Court has held that the Board is precluded by
regulation from assigning an extraschedular rating under 38
C.F.R. § 3.321(b)(1) (2002) in the first instance; however,
the Board is not precluded from raising this question, and in
fact is obligated to liberally read all documents and oral
testimony of record and identify all potential theories of
entitlement to a benefit under the law and regulations.
Floyd v. Brown, 9 Vet. App. 88 (1996). The Court has further
held that the Board must address referral under 38 C.F.R.
§ 3.321(b)(1) only where circumstances are presented which
the Director of VA's Compensation and Pension Service might
consider exceptional or unusual. Shipwash v. Brown, 8 Vet.
App. 218, 227 (1995). Having reviewed the record with these
mandates in mind, the Board finds no basis for further action
on this question. VAOPGCPREC 6-96 (1996).
FINDINGS OF FACT
1. The veteran's right knee disability has been shown to be
manifested by no more than a range of motion of 0 to 108 -
112 degrees with pain, weakened movement, excess fatigability
and incoordination; moderate joint instability; and no
radiological abnormalities.
2. The veteran's left knee disability has been shown to be
manifested by no more than a range of motion of 0 to 114
degrees with pain, weakened movement, excess fatigability and
incoordination, and no joint instability or radiological
abnormalities.
CONCLUSIONS OF LAW
1. The veteran's right knee patellar tendonitis is 20
percent disabling according to applicable schedular criteria.
38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a,
Diagnostic Code 5257 (2002).
2. The criteria for an evaluation in excess of 10 percent
for the veteran's left knee patellar tendonitis have not been
met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R.
§§ 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003,
5024, 5257, 5260, 5261 (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
In reviewing the issues of the evaluation of the veteran's
right and left knee disabilities, the Board observes that the
VA has secured or attempted to secure all relevant VA and
private medical records to the extent possible. There
remains no issue as to the substantial completeness of the
veteran's claims. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West
2002); 38 C.F.R §§ 3.102, 3.159, 3.326(a) (2002). The
veteran has been afforded VA examinations for compensation
purposes. The examination reports are of record. Any duty
imposed on the VA, including the duty to assist and to
provide notification, has been met. Quartuccio v. Principi,
16 Vet. App. 183 (2002).
I. Historical Review
The veteran's service medical records indicate that he was
seen for knee complaints. The report of the veteran's July
1998 physical examination for service retirement indicates
that the veteran underwent a right knee surgical procedure
which included patellar tendon repair, cyst removal, and
debridement. On examination, the veteran exhibited a right
knee surgical scar and essentially no other knee
abnormalities. The report of a January 1999 VA examination
for compensation purposes states that the veteran exhibited a
right knee range of motion of 0 to 112 degrees without pain;
a left knee range of motion of 0 to 114 degrees without pain;
and "good" bilateral knee stability. In June 1999, the RO
established service connection for bilateral knee patellar
tendonitis and assigned a noncompensable evaluation for that
disability. In February 2002, the RO recharacterized the
veteran's bilateral knee disability as right knee patellar
tendonitis evaluated as 10 percent disabling under the
provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5024 and
left knee patellar tendonitis evaluated as 10 percent
disabling under the provisions of 38 C.F.R. § 4.71a,
Diagnostic Code 5024.
II. Increased Evaluations
Disability evaluations are determined by comparing the
veteran's current symptomatology with the criteria set forth
in the Schedule For Rating Disabilities. 38 U.S.C.A. § 1155
(West 2002); 38 C.F.R. Part 4 (2002). Tenosynovitis is to be
evaluated as degenerative arthritis on the basis of
limitation of motion of the affected joints. 38 C.F.R.
§ 4.71a, Diagnostic Code 5024 (2002). Degenerative arthritis
established by X-ray findings will be rated on the basis of
limitation of motion of the specific joint or joints
involved. When the limitation of motion of the specific
joint or joints involved is noncompensable under the
appropriate diagnostic codes, an evaluation of 10 percent is
applied for each major joint or group of minor joints
affected by the limitation of motion. These 10 percent
evaluations are combined and not added. 38 C.F.R. § 4.71a,
Diagnostic Code 5003 (2002).
Limitation of flexion of either leg to 45 degrees warrants a
10 percent disability evaluation. A 20 percent disability
evaluation requires that flexion be limited to 30 degrees. A
30 percent evaluation requires limitation to 15 degrees. 38
C.F.R. § 4.71a, Diagnostic Code 5260 (2002). Limitation of
extension of either leg to 10 degrees warrants a 10 percent
disability evaluation. A 20 percent disability evaluation
requires that extension be limited to 15 degrees. A 30
percent disability evaluation requires that extension be
limited to 20 degrees. 38 C.F.R. § 4.71a, Diagnostic Code
5261 (2002). The average normal range of motion of the knees
is from 0 to 140 degrees. 38 C.F.R. § 4.71 (2002).
Slight impairment of either knee, including recurrent
subluxation or lateral instability, warrants a 10 percent
disability evaluation. A 20 percent disability evaluation
requires moderate impairment. A 30 percent evaluation
requires severe impairment. 38 C.F.R. § 4.71a, Diagnostic
Code 5257 (2002).
The evaluation of the same disability under various diagnoses
is to be avoided. Disability from injuries to the muscles,
nerves, and joints of an extremity may overlap to a great
extent, so that special rules are included in the appropriate
bodily system for their evaluation. 38 C.F.R. § 4.14 (2002).
Disability of the musculoskeletal system is primarily the
inability, due to damage or infection in the parts of the
system, to perform the normal working movements of the body
with normal excursion, strength, speed, coordination, and
endurance. It is essential that the examination on which
ratings are based adequately portray the anatomical damage,
and the functional loss, with respect to all these elements.
The functional loss may be due to absence of part, or all, of
the necessary bones, joints and muscles, or associated
structures, or to deformity, adhesions, defective
innervation, or other pathology, or it may be due to pain,
supported by adequate pathology and evidenced by visible
behavior of the claimant undertaking the motion. Weakness is
as important as limitation of motion, and a part which
becomes painful on use must be regarded as seriously
disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (2002). The
Court has held that the RO must analyze the evidence of pain,
weakened movement, excess fatigability, or incoordination and
determine the level of associated functional loss in light of
38 C.F.R. § 4.40 (2002), which requires the VA to regard as
"seriously disabled" any part of the musculoskeletal system
that becomes painful on use. DeLuca v. Brown, 8 Vet. App.
202 (1995).
At the January 1999 VA examination for compensation purposes,
the veteran complained of bilateral knee pain, soreness,
stiffness, instability, giving way, locking, fatigability,
and lack of endurance. He reported that he occasionally used
a knee brace. The veteran was observed to "walk well
without a limp." On examination, the veteran exhibited a
right knee range of motion of 0 to 112 degrees without pain;
a left knee range of motion of 0 to 114 degrees without pain;
and "good" bilateral knee stability. Contemporaneous X-ray
studies of the knees revealed no abnormities. The veteran
was diagnosed with right knee arthralgia with no functional
loss due to pain.
In his December 1999 Appeal to the Board (VA Form 9), the
veteran advanced that he experienced intermittent bilateral
knee pain which impaired both his employment as a mechanic
and his ability to climb stairs; to stoop; and to lift heavy
items. The veteran's bilateral knee pain necessitated his
daily use of Motrin.
VA clinical documentation dated in February 2000, May 2000,
and May 2001 reflects that the veteran complained of chronic
bilateral knee pain which was partially relieved by the use
of Motrin. At a June 2001 VA examination for compensation
purposes, the veteran complained of right knee pain;
intermittent left knee pain; and bilateral knee weakness,
swelling, instability, fatigability, and lack of endurance.
He reported that his knee disabilities necessitated that he
cease working as a mechanic. The veteran was noted to walk
with a limp. On examination, the veteran exhibited a right
knee range of motion of -6 to 108 degrees with pain; a left
knee range of motion of -2 to 126 degrees with pain; moderate
right knee anterior and posterior instability; and edema.
Contemporaneous X-ray studies of the knees were reported to
be normal. The veteran was diagnosed with right knee
arthralgia with functional loss due to pain and left knee
arthralgia. The VA examiner commented that:
He had significant limitation of motion
on the examination today. The knees do
exhibit weakened movement, excess
fatigability, and [in]coordination. I do
feel that these factors result in an
additional loss of range of motion.
A. Right Knee
The Board has reviewed the probative evidence of record
including the veteran's statements on appeal. The veteran's
post-operative right knee disability has been shown to be
manifested by significant actual and functional right knee
limitation of motion due to pain and moderate joint
instability. A 10 percent evaluation is currently in effect
under the provisions of 38 C.F.R. § 4.71a, Diagnostic Codes
5024. The veteran's functional right knee limitation of
motion has not been objectively shown to meet the criteria
for assignment of a compensable evaluation under the
provisions of 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261.
In the absence of evidence of such limitation of motion, the
Board will turn to consideration of alternate criteria to
ascertain whether a higher evaluation may be in order.
At the most recent VA examination for compensation purposes
of record, the examiner commented that the veteran exhibited
moderate right knee instability. While instability was not
documented at the time of the examination in January 1999,
the veteran did complain of instability. Given the veteran's
complaints and the examiners assessment of moderate
instability on the later examination, it is concluded that
the disability is now better rated under Diagnostic Code 5257
and a 20 percent rating is in order. In the absence of any
objective evidence consistent with severe right knee
instability or subluxation, the Board finds that a rating in
excess of 20 percent is not warranted. 38 C.F.R. § 4.71a,
Diagnostic Code 5257 (2002).
B. Left Knee
The veteran's left knee disability has been shown to be
manifested by significant actual and functional joint
limitation of motion due to pain. A 10 percent evaluation is
currently in effect under the provisions of 38 C.F.R.
§ 4.71a, Diagnostic Codes 5003, 5024. The veteran's left
knee functional limitation of motion has not been objectively
shown to approach either limitation of flexion to 45 degrees
or limitation of extension to 10 degrees, the criteria
required for assignment of a compensable evaluation under the
provisions of 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261.
In the absence of such evidence, the veteran is in receipt of
the maximum evaluation available under Diagnostic Codes 5003,
5024. In the absence of objective evidence of current left
knee instability, the provisions of Diagnostic Code 5257 are
not for application. Therefore, the Board concludes that the
current 10 percent evaluation adequately reflects the
veteran's left knee disability picture.
ORDER
A 20 percent evaluation for the veteran's right knee patellar
tendonitis is granted subject to the regulations governing
awards of monetary benefits.
An evaluation in excess of 10 percent for the veteran's left
knee patellar tendonitis is denied.
____________________________________________
C.W. Symanski
Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.